Appeals of Sex Offender Registration Cases

If you or someone you know is arrested for failure to register as a sex offender, it is important to understand what recent arguments have been made against the sex offender registration statute. This article will discuss some of the recent defense arguments made to this duty to register as a sex offender.

The basic rule regarding registration is that anyone who commits a sex offense that requires registration must register with local law enforcement. Although there are no exceptions to this rule to register unless you are a minor, Texas courts have recently accepted other arguments against the requirement to register.

In Nikolaev v. State, 2014 WL 880272, the defendant was charged with a failure to register and appealed this conviction, claiming that the evidence was insufficient to find that the he failed to correct or update his current place of residence. The court defined a “residence” as a place where the bodily presence and intent to live are both found. Basically, the person must stay at the location and intend for this location to be his residence for the State to have enough proof that this is his legal residence. Mr. Nikolaev worked as a truck driver and often stayed in his truck for several nights. Although he spent a substantial amount of time in his truck, this did not count as his residence in terms of the requirement to register, so the State could not force him to register his truck as his residence. Likewise in Thomas v. State, 411 S.W.3d 685 (Tex. App. Texarkana 2013), Mr. Thomas received a criminal trespass order to stay away from his apartment building. Due to the criminal trespass order, Mr. Thomas was forced to stay elsewhere, however; he maintained that he possessed every intention of returning to his apartment. Because Mr. Thomas intended to return to his apartment, the State could not prove that Mr. Thomas had a duty to register somewhere else. Finally in Jordan v. State, 2012 WL 1564295 (Tex. App.--Houston (1st. Dist.) 2012), the court ruled in favor of the defendant because the State could not provide sufficient evidence to show that Mr. Jordan intended to move from his residence. In this case, Mr. Jordan was evicted with two days notice, however; he already prepaid that month’s rent at the time of eviction. Mr. Jordan had no intention of moving from the residence and his rent payment, failure to leave the property, and failure to secure any other means of residence, proved that the State failed to show any intent to changes residences.

A person with a duty to register as a sex offender does not have to spend every hour of every day at his or her registered address. In Silber v. State, 371 S.W.3d 605 (Tex. App.—Houston [1st. Dist.] 2012), a man registered his own house as his registered address with the local authorities, however; when the FBI went to his registered address to ask him a question about an unrelated case, he was not there. The Court held that a person who registers at a certain address does not have to remain there every day and night. The person must only prove that he or she visited the residence fairly often in order for the registration to remain valid.

Recently in Lee v. State, 2012 WL 5944925 (Corpus Christi), the court reversed a conviction for failure to register as a sex offender because the police failed to make time to meet with the defendant. In this case, William Joseph Lee was charged with failure to register as a sex offender. The local law enforcement rescheduled on Mr. Lee multiple times and due to these rescheduled meetings, Mr. Lee missed his seven day period to register.

Finally, in Van Hook v. State, 2013 WL 5658370, the court ruled in favor of Mr. VanHook because the court gave an incorrect charge to the jury when the State used a prior conviction to prove the element of the offense and used the same conviction to enhance punishment for the offense being tried. In this case, Mr. VanHook had two prior indecent exposure charges and the State attempted to use both of these crimes to enhance his punishment for failure to register to jail sentence of 25-99 years. The State may only use one of the indecent exposure charges to enhance the punishment, because one of the indecent exposure charges has to relate back to the crime of failure to register in order for the State to charge anyone with failure to register.

If you have been arrested for failing to register as a convicted sex offender, call Guest and Gray Law Firm’s defense team today. Guest and Gray Law Firm is a full service civil and criminal defense law firm serving the entire DFW Metroplex including Dallas, Kaufman, Rockwall and surrounding counties. Our main office is in Forney, Texas where we have served the community since 1967. We also have office locations in Rockwall and Kaufman, Texas. Our team of lawyers is ready to help with any concern you might have involving any duty to register as a sex offender.